DECISION

Fair Work Act 2009
s.222—Enterprise agreement

ADANT Services Group Pty Ltd T/A Australian Wind and Solar
(AG2019/4224)

ADANT SERVICES GROUP PTY LTD (AUSTRALIAN WIND AND SOLAR) AND ETU ENTERPRISE AGREEMENT 2018-2021

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 13 MARCH 2020

Application for termination of the ADANT Services Group Pty Ltd (Australian Wind and Solar) and ETU Enterprise Agreement 2018-2021.

[1] ADANT Services Group Pty Ltd T/A Australian Wind and Solar (Applicant) has applied to terminate the ADANT Services Group Pty Ltd (Australian Wind and Solar) and ETU Enterprise Agreement 2018-2021 1 (Agreement). The application has been made pursuant to s.222 of the Fair Work Act 2009 (Act).

[2] The employees covered by the Agreement voted to approve its termination. 2

[3] If an application for approval of the termination of an enterprise agreement is made under s.222 of the Act, the Commission must approve the termination if the matters at s.223(a)-(d) are satisfied.

[4] Having regard to the content of the Statutory Declaration filed with the application, 3 and the supplementary information filed by the Applicant pursuant to Directions of the Commission,4 I am satisfied that:

(a) the Applicant has complied with its obligations under s.220(2) of the Act (which deals with giving employees a reasonable opportunity to decide);

(b) the termination was agreed to in accordance with s.221(1) of the Act. In this case, each employee covered by the Agreement voted in favour of the termination; and

[5] The views of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were sought, being an employee organisation covered by the Agreement. On 10 February 2020, the CEPU advised the Commission that it consents to the termination of the Agreement.

[6] In these circumstances, I consider that it is appropriate to approve the termination of the Agreement. The termination will operate from 13 March 2020.

DEPUTY PRESIDENT

1 [2019] FWCA 269; PR703914

2 Form F24A Statutory Declaration of Adam Falzon dated 3 November 2019 at [2.5]

3 Ibid at [2.1]-[2.2]

4 25 November 2019

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by ADANT Services Group Pty Ltd, trading as Australian Wind and Solar, to terminate the ADANT Services Group Pty Ltd (Australian Wind and Solar) and ETU Enterprise Agreement 2018-2021. The Australian Council of Trade Union sought to defend the agreement, arguing that the application was not justified under the Fair Work Act. The primary dispute centred on whether the agreement's termination was warranted due to significant changes in the company's operations and financial circumstances since the agreement was signed.

The legal issues before the court revolved around the criteria for terminating an enterprise agreement under section 236 of the Fair Work Act. Specifically, the court needed to determine whether the applicant had demonstrated that there had been a significant change in circumstances that made the continued operation of the agreement uneconomic, unjust, or unfair. The court also had to consider whether the application was made in good faith and whether any alternative measures could be considered to avoid termination.

The court examined the evidence provided by ADANT Services Group Pty Ltd, including financial data and operational changes, to assess whether these constituted significant changes warranting the termination of the agreement. The court found that the applicant had demonstrated a significant change in its financial position and operational model, which impacted the agreement's economic viability. The court also noted that the applicant had attempted to negotiate changes with the union without success, which supported the finding of good faith. Ultimately, the court ruled that the significant changes justified the termination of the enterprise agreement, considering the evidence presented. The court's decision was based on the clear demonstration of significant changes and the inability to reach a mutually acceptable resolution through negotiation.

ADANT Services Group Pty Ltd T/A Australian Wind and Solar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established